State groundwater law is a powerful tool, but only if we use it

The recent horrific natural disasters in Japan and the subsequent chain of events that ultimately resulted in nuclear reactors releasing radiation is a rude wake-up call to the world — and to Vermont.

The disasters underscore the broad safety threat posed by the aging Vermont Yankee nuclear power plant, a plant that shares certain similar design characteristics with the Fukushima plant.

While Vermonters are rightfully shocked by the release of radioactivity from the damaged Japanese reactors, let’s not forget that Vermont Yankee (VY) has already leaked – and may be continuing to leak – radioactive material into Vermont’s groundwater — your groundwater.

Groundwater provides 67 percent of Vermonters with their drinking water. And groundwater was declared a public trust resource with the signing of the Groundwater Protection Act of 2008 (GWPA).  That means it belongs to all Vermonters, no matter where it is located. Under your land or my land, groundwater belongs to all of us.

A recent Vermont Environmental Court decision regarding a Rutland County mineral processing operation’s discharge into groundwater is the first major case to test the new law. The decision, in “re Omya Solid Waste Facility,” strongly reinforces the contention that the discharges at VY are illegal.  The decision states: “Groundwater must therefore be managed as a public trust resource with regard to the quality of groundwater as well as with regard to quantity.”                             
Thus, the first significant court interpretation of the GWPA confirms the position that, like OMYA, VY has contaminated the groundwater and has violated the public trust. The decision found the protections afforded by the GWPA — thought by some to apply only to water extractions — include the water’s quality as well as quantity.

Hooray for Vermonters who drink water!

With the recent nuclear reactor crisis in Japan, many of those countries and states that host facilities similar to the stricken ones in Fukushima are questioning the safety and reliability of the nuclear power. And given the potentially lethal and long-term consequences of Vermont Yankee’s ongoing operation, many in Vermont are also rightfully intensifying their call for the plant’s scheduled closure in 2012.
Here in Vermont new case law for the GWPA gives us an effective tool to help in the effort to clean up Yankee and close it.  But we must use that tool, if we want it to work for us.

To put the GWPA to work, the State of Vermont should act swiftly to bring an enforcement action against Vermont Yankee. It’s the right thing to do. One could argue that it is the state’s statutory duty to enforce the law. Specifically, the state  should: force VY to immediately cease polluting groundwater in and near the plant, require VY to clean up the groundwater and make VY comply with enforcement actions against the discharge of tritium (and possibly other substances) into Vermont’s water resources.

Groundwater cleanup is highly complex — it’s not a simple kit you buy at your local hardware store. The longer the State waits to force a cleanup, the more widespread and complex the task becomes. Polluting the groundwater and then delaying the cleanup of radioactive pollution is clearly not in the public interest.

Many of us feel a kind of small-world vulnerability in the face of recent frightening natural and human-made disasters. And the tragedy of radioactive release in Japan continues, with more stories in the news every day. 

But let’s remember that the Green Mountain State has a powerful law to help protect Vermonters’ drinking water and its people, if we would only choose to enforce it.